March 01, 2005

Jury selection in Scotland

The Feb. 15 edition of The Scotsman (reg) notes that the elaborate voir dire procedures in an American trial like Michael Jackson's are "a situation far removed from that in Scotland, where the 15-strong jury with no alternates is seldom subject to gruelling questions from either side." It seems they do things very differently over there:

The opposition within the Scottish criminal justice system to voir dire and to high-profile jury selection experts such as those in the Santa Maria courthouse - a profession worth $700 million a year in the US - was given in 1985 by the Lord Justice Clerk, Scotlandís second most senior judge, on behalf of the Appeal Court in McCadden v HM Advocate: "There may never be a process which eliminates the possibility of personal prejudices existing among jurors, the nearest practical one (and it is not foolproof) being possibly the 'vetting' of jurors, a system against which the law of Scotland has steadfastly closed the doors. Evidence of how it is used and abused in countries in which it is operated only tends to confirm the wisdom of that decision."

Herbert Kerrigan, one of Scotlandís leading QCs, says: "In Scotland, you run the risk of prejudice you donít know about - somebody who will never convict. Alternatively, you could get somebody who will never acquit. But the random element of selection [in Scotland] means that neither side has an advantage or disadvantage. There is always going to be a problem with a high-publicity case; though [random selection] avoids having certain types of people packing the jury."

In Scotland, jurors thought to have a conflict of interest - a nurse in a trial involving an act of violence, for example - will be weeded out, although the final decision rests with the judge. Statutory disqualification of certain groups - police officers for one - also takes place.

The right of both legal teams to challenge up to three potential jurors without giving a reason - peremptory challenges - was abolished in 1995 as it was generally believed to favour the defence.

The Scottish approach assuredly gives lawyers less power -- and less work to do -- but it is not clear that it results in any less justice being done.
Posted by Walter Olson at 12:23 AM
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